Epidemics not Mentioned

After the Liberal Democratic Party (LDP) was defeated badly in the 2009 general election, the party began work on drafting revisions to the Constitution. And following the 2011 Great East Japan Earthquake, many observers warned that, unless the prevailing approach of responding after the fact was ditched, Japan would surely suffer again.

So in April 2012 the LDP decided to draw up an “emergency situation clause” separate from its overall draft plan for the revision of Japan’s Constitution.

This clause provides that, in the event of an emergency situation, the Prime Minister may issue a declaration of emergency and establish emergency ordinances that would have the same validity as laws. The clause would also curtail individual rights when government orders that everyone is required to follow are issued for the protection of the general public.

Former Upper House Diet member Yosuke Isozaki, who was then head of the secretariat of the drafting committee in the LDP’s Headquarters for the Promotion of Revision of the Constitution, emphasized: “What is critical when a crisis arises is a sense of speed. An epidemic is what I had in mind.”

In reference to conditions when a declaration of emergency would be warranted, the LDP draft speaks of “attacks on our nation from abroad, disturbances of the social order due to internal strife, etc., large-scale natural disasters due to earthquakes, etc., or other states of emergency as determined by law.”

Some have interpreted the language of the clause so that epidemics are considered to be covered by expressions like “etc.” The fact, however, is that the LDP draft that opposition parties criticized as “too conservative” did not spell out such an eventuality.

Seeking Emergency Powers that Meet International Standards

As a result of the 2016 Upper House election, the LDP and its allies gained in both houses of the Diet control of the two-thirds majority required to propose constitutional revisions. The LDP thereupon began to draft a “soft plan for constitutional revision that other parties could easily agree to.”

On the morning of March 7,2017, at a meeting of officers of the LDP’s constitutional reform promotion headquarters, there was contentious debate on whether or not a provision authorizing limitations to the exercise of personal rights should be included in the new draft of the revised Constitution.

Some of the opinions expressed were: “Unless individual rights are clearly defined in the Constitution, then governors and mayors will be hesitant to curtail individual rights in line with the Basic Act on Disaster Management.”

Other comments suggested: “Mayors already have leeway to limit the exercise of individual rights by residents under current laws” and “Well, in that case, it’s no different from the Basic Act on Disaster Management, and the justification for constitutional revision [in this respect] would vanish.”

The end result was that, at the afternoon general meeting, Hiroyuki Hosoda argued, “We would be straying from constitutional principles if we were to accept the opinion, ‘Isn’t it just good enough to respond as if it existed even if there is no provision within the Constitution?’”

Need to Provide for Fast Developing, Worst Case Disasters

The group therefore adopted an approach that would incorporate explicit strengthening of government authority in this regard.

Consequently, the four-point plan for constitutional revision that the LDP finalized that same month contained a clause that read, “In the event that there is not enough time for the Diet to pass legislation, the Cabinet may adopt ordinances designed to protect the lives and property of the nation’s people.”

However, even the LDP’s coalition partner, the Komeito, was critical of the proposal, with its deputy president Kazuo Kitagawa stating, “Compulsory measures for the protection of the lives and health of the public can be taken under existing laws.”

Measures to limit individual rights would necessarily impinge on respect for individual rights, which, along with freedom and property rights, is one of the three fundamental rights guaranteed under the Constitution of Japan. Therefore, if separate laws allowing compulsory measures with penalties attached were to be passed, they might be unconstitutional.

That being so, it is definitely logical that the Constitution, as the supreme law of the land, should clearly spell out how to respond to emergencies. According to Osamu Nishi, professor emeritus at Komazawa University, establishing a clause dealing with emergencies in the Constitution would be in line with “worldwide constitutional practice.”

Nishi says that, of the 104 constitutions established since 1990 that he has studied, very few lack provisions dealing with emergency situations.

Likewise, Kokushikan professor Akira Momochi says, “If you look at the various acts on special measures, the Basic Act on Disaster Management and so on, these statutes all are framed as extensions of normal times, and I don’t think they are adequate to respond to a true time of disaster.”

Former Defense Agency director Gen Nakatani, who has been involved in the writing of the LDP’s plan for the revision of the Constitution, says: “The Constitution created under the Occupation was not conceived ‘with the worst case in mind.’ Consequently, we have been dealing with situations one after the next on an ad hoc basis.”

Nakatani adds a warning, “Now, with the novel coronavirus, we realize that the methods we have used up until now have reached their limit in dealing with such fast-developing situations.”

What Would Happen if Tokyo were Knocked Out?

In September 2015, the Japan Federation of Bar Associations carried out a survey in communities impacted by the Great East Japan Earthquake. In reply to a question asking whether the “Constitution impeded” countermeasures/ responses to the disaster, of the 24 municipalities queried, 23 replied in the negative. This survey is often cited to support the argument that there is no need to revise the Constitution in order torespond to disastersand other eventualities.

Nevertheless, there is no guarantee that what held true in past experience will apply in the future. Instead, relying on past practice might even become an obstacle.

If, as expected, amega earthquake occurs in Nankai Trough off Japan’s east coast, the zone of projected damage would include the Osaka and Nagoya metropolitan areas. The worst case scenario calls for the number of dead and missing to reach 230,000 or 13 times the number of casualties from the Great East Japan Earthquake.

In the case of amajor earthquake with the epicenter directly under Tokyo, in a worst case estimated economic losses would be in the ¥95 trillion JPY range, with 23,000 residents dying or going missing. Of particular concern is the possibility that the city could no longer perform its functions as the nation’s capital.

Would it be fine in such a case to take extraordinary measures to deal with the crisis situation, even “extralegal measures” that violate the Constitution?

We await to see how the government and the Diet will deal with these thorny issues raised by the novel coronavirus pandemic.

(Click here for Part 1 in English and here for access to the original article in Japanese.)